DOJ facing tough decision on charges for officer in Eric Garner’s death

By Arnold N. Kriss

|SPECIAL TO THE NEW YORK DAILY NEWS|

Apr 20, 2018 | 5:03 PM

The U.S. Department of Justice stands at a crossroads.

Will the government indict NYPD Officer Daniel Pantaleo for the July 17, 2014, death of Eric Garner on civil rights charges? Or will they decline to prosecute, faced with the daunting task of trying a police officer?

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From early news reports, Justice officials recommended an indictment. Other federal prosecutors and investigators have recommended the opposite.

Experts say that getting an indictment will not guarantee a guilty verdict at a trial because the burden of proof — beyond reasonable doubt — is so much higher. In order to get a guilty verdict, the U.S. attorney must prove that the force Pantaleo used as a police officer was a criminal violation of federal law depriving Garner of his civil rights (his life) by reason of Garner's color or race. And, the most difficult part to prove, the government must show that the officer acted willfully.

The world saw the shocking videotape of Garner being brought down by Pantaleo. When Garner was on the ground, with other officers assisting, Pantaleo had his knee on Garner's neck.

The death of Garner on Staten Island was caught on videotape. (acquired by: TOMAS E. GASTON)

We all heard the haunting Garner cry, "I can't breathe, I can't breathe," before he died.

But it may not be enough for a trial jury to conclude that Garner's death occurred willfully and with specific intent because of his color or race.

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The death of Eric Garner and the events that followed

The Justice Department's top officials will deliberate these factors, as prior Justice Department officials have done in other high-profile "excessive force" cases.

Justice and closure for the Garner family may not be in the criminal system. The only remaining forum for all the facts to come out is the NYPD disciplinary process.

If no federal criminal charges are forthcoming, Pantaleo and all participating and supervising officers must be charged if there was a department violation and publicly tried and finality will be a public report.

An NYPD hearing may end a tragic event that has taken too many years to reach finality.

Arnold N. Kriss, a Manhattan attorney, was also an NYPD deputy commissioner and a former Brooklyn assistant district attorney.

Kriss, a Manhattan attorney, was an NYPD deputy commissioner and a former Brooklyn assistant district attorney who prosecuted police officers and as a criminal attorney defended police officers.